This Week in Copyright – SOPA, Golan, and Megaupload

It has been an exceptionally busy week for copyright policy. We heard from all three branches of the US Federal Government in one way or another, while the citizens of the Internet flexed their muscles in response.

Buried in the day’s developments was the Judicial branch’s copyright contribution. In a highly anticipated decision, the Supreme Court ruled on the case of Golan v. Holder. At issue was the question of whether or not Congress had the right to make a law that moved public domain works into copyright. Opponents of this law claimed that such a move violated not only the First Amendment, but also the purpose of the Copyright Clause — not to mention and age-old legal principles. The majority did not agree, and in a 6-2 vote it stated that individuals do not have any particular right that guarantees their use of the public domain, so they have no claim if Congress removes materials from it. Justices Breyer and Alito dissented, explaining that the ruling upset the delicate balance that the Founders had struck in affording limited monopoly rights to content creators. Nevertheless, the majority clearly demonstrated that the Judicial branch continues to trend toward greater expansion of copyright protection.

Opponents of SOPA and PIPA welcomed the opportunity to reflect on why these developments demonstrated the shortcomings of the proposed bills. Some of them noted that the DoJ’s actions were done without any additional authority from harmful new bills, while others observed that such approaches to enforcement are ultimately ineffective — they observed that it was only a matter of time until Megaupload returned, or the many other file-sharing sites filled their shoes. By Thursday night, all four GOP presidential candidates had come out against SOPA.

It is hard to consolidate all of these developments into a coherent story of where things are headed. However, a few things seem clear. First, the SOPA/PIPA backlash is shows us that the internet can help citizens to rally a truly remarkable effort that penetrates the beltway bubble. Second, internet freedom is a compelling and accessible counter-narrative to copyright maximalism and government policing. Third, the courts continue to favor an approach to copyright that emphasizes property rights of those who have already created works over the free speech rights of those who may rely on those works to create new works. Fourth, the enforcement arms of the government are interested in taking ever-more-extreme measures to take down those accused of infringement, and are committing more taxpayer resources to a problem that continues to grow despite their approach.

But perhaps most significantly, this week shows us that there is just plain turmoil in this area. Policymakers are struggling to find good answers, and sometimes their “solutions” provoke far more criticism than praise.

Comments

It is hard to consolidate all of these developments into a coherent story of where things are headed.

I think we’re looking at the usual behavior of a loosely organized group undergoing a major change in direction.

An infantry unit is highly organized and disciplined. Yet, when an infantry unit reacts to circumstances by changing direction, the soldiers do not move in unison. For a few seconds, you would observe individuals advancing in many directions. An observer on the scene at that moment would find it hard to consolidate all of those charges into a coherent story of where the unit is headed. How much more apparent chaos you must expect, and how much longer, when We the People are similarly obliged react to circumstances!

The political destiny of the U. S. is still in the hands of its people. It is the people who have allowed corporations to become overweeningly powerful, accepted vast erosions of their civil rights in the name of security, and supervised the concentration of power in central government. The people are now rethinking this. Naturally the people will not all react in unison, so we should not be surprised to see a decade or two of chaotic politics.

But just as I am always confident the soldiers will complete their maneuver and exert force in the newly desired direction, I believe the people will unite, more or less, to move the country to a better place.

The “GOOD” news with the SOPA/PIPA discussion is that it raised the copyright debated into the public consciousness. The “BAD” news is that the public remains unaware of the progressive “land-grab” by the content industry.

The content industry simplistically presents “piracy” as a fight against theft. Good versus evil. What is not presented; is that copyright has progressively expanded in duration and scope. In a sense, one can say that it is the content industry that has created the pirates by making formerly legal activities criminal by changing the law,

This was recently illustrated by a three person panel of so-called pundits on Fox News. While they recognized that the proposed SOPA/PIPA laws went to far in terms of abolishing civil liberties, they nevertheless supported the necessity of the content industry to fight “theft”. The fact that the content industry continues to seek changes in the law to give them special privileges (that creates theft) was overlooked by these so-called pundits.

These so-called pundits also put forth the empty gratuitous call for compromise. Exactly how would you compromise with a special interest group that keeps wanting to take away your civil liberties. You can’t.

Want to reduce piracy? Restore copyright to its original duration and scope. A lot of piracy would then disappear because content will enter the public domain. Regretfully, this rationale approach to “fighting” piracy will probably never see the light-of-day because the real interest is locking content to maximize revenue.

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